Form and requisites of notes,

&c.

In all points in which a distinction between bills of exchange and promissory notes, has not been pointed out, the rules relative to the one, equally apply to the other, and therefore it will not be necessary to make any further observations in the present chapter.

437

PART SECOND.

The REMEDIES on a Bill, Check, or Note.

IN the preceding part of this work, I have endea

voured to point out the nature of the RIGHT which may be acquired by the instruments which are the subject of this Treatise. The REMEDY which the law affords the parties to enforce payment, forms the remaining head of enquiry. In this part of the work no distinct observations on bills and notes will be necessary, as the same remedies are given by law on both species of instrument, except that in some cases debt is not sustainable on a promissory note, which distinction will be pointed out. The means of enforcing payment, are either by action of assumpsit, or debt, or, where the party is a bankrupt, by proof under the commission. In the consideration of the above mentioned actions, the pleas and defences, and the evidence to be adduced by each party, will also be considered,

CHAPTER I.

BY, AND AGAINST WHOM, AN ACTION OF ASSUMPSIT ON A BILL, CHECK, OR NOTE, MAY BE SUPPORTED.

THE action of ASSUMPSIT is by far the most usual remedy on bills, checks, and notes; and indeed it ap pears to be the only remedy where no privity of contract exists between the parties, as between the indorsee and the acceptor of a bill, and a remote indorsee and maker of a note, in which case debt is not maintainable', or when the action is against an executor or administrator, against whom debt on simple contract is not in general sustainable.

With respect to the persons, by, or against whom, this action may be brought, it may be observed, in general, that whenever a legal right is created, or liability imposed, through the medium of these instruments, that right may be asserted, and that liability enforced, by this action. Therefore a person may sue on a note payable to him, though in trust for a third party. And the wife may join with her husband in an action on a note made payable to her during the coverture. When there are several indorsers, it is not necessary that the action should be brought in the name of the holder, or of the last indorser: they may arrange the matter among themselves, and any one indorser may sue the acceptor or drawer, instead of the preceding indorser, striking out all the names

Bishop. Young, 2 Bos. & Pul. 78.

2 Barry v. Robinson, 1 New Rep. 293.

Poth. tit. Contrat de change, part 1, chap. 5. art. 2. per totum. Smith v. Kendall, 1 Esp. Rep. 231.—6 T. R. 123. S. C.-Randali v. Bell, 1 M. & S. 723.

' Philliskirk et ux v. Pluckwell, 2 M. & S. 393.-Ante, 25.— 1 Chitty on Plead. 3d ed. 20.

below his own. Where a merchant, carrying on trade on his own separate account, introduces into his firm the name of a clerk, who has no participation in profit or loss, but continues to receive a fixed salary, it was held, that in an action on a bill of exchange payable to the order of this firm, the clerk must be joined as a plaintiff, unless it be distinctly proved that he had no interest. And if a party, who has commenced an action on a bill, deposit it afterwards as a security in the hands of a third person, he may still proceed in the action, if the latter knew that the action was commenced; and if such third person, having had this notice, commence another action against the same defendant, the court will stay his proceedings. And the drawer of a bill, after taking it up, may sue and arrest a bankrupt acceptor, who has not obtained his certificate, although a previous holder, has proved under the commission'.

The bonâ fide holder of a bill, check, or note, may in general maintain an action thereon against all the parties to it, whose names are to it, and who became so previously to himself. Thus the payee may, in default of payment, sue the acceptor, whether he accepted as drawee, or merely for the honour of the drawer, and he may also, in such case, sue the drawer. An indorsee may, in general, not only sue the acceptor and drawer, but also all the prior indorsers; and an assignee, by mere delivery, may sue the acceptor, drawer, and indorsers, but he cannot maintain an ac

Per Eyre, C. J. in Walwyn v. St. Quintin, 1 Bos. &. Pul. 658,~ This doctrine was recognized in Parnell v. Townend, Trin. Term, 58 Geo. 3, on an argument of a demurrer, see post. But if a bill were really the property of another, and put into the hands of a defendant to set off against a claim on him, that might present a dif ferent question. Per Lord Ellenborough, in Cornforth v. Revetts,

2 M. & S. 512.

2

Guidon v. Mary Robson, 2 Campb. 302.

31 Chitty on Plead. 3d ed. 8.

Marsh v. Newell, 1 Taunt. 109.-And see the observations of Abbot, J. in Randall v. Bell, 1 M. & S. 723.

'Mead v. Braham, 3 M. & S. 91.

Bishop v, Hayward, 4 T. R. 471.

tion against any person whose name is not on the bill, except the person who assigned it to him, and then only when the consideration of the transfer was a prccedent debt, or a debt arising at the time, and not when he became the holder by discounting the bill upon a purchase thereof, as some times occurs. However, a person to whom the drawer of a bill which had been accepted for value, has indorsed it after it was dishonoured, and after it had been paid by the drawer, may sue the acceptor in his own name '.

The drawer may maintain an action on the bill against the drawee, in case of a refusal to pay a bill already accepted, but not on a refusal to accept, in which latter case the action by him must be on the original consideration of the bill, or in some cases specially on the contract to accept; and any party who has given value for the bill, and has been obliged in consequence of the default of the acceptor, may maintain an action thereon against all the parties antecedent to himself, and in this case he is said to hold the bill in his original capacity; and the drawer of a bill, payable to the order of a third person, may, when the bill has been returned to him, and he has paid it, sue the acceptor 3.

· to pay

'Ante, 184, 5, 6, 7.

2 Ante, 188.

3 See Callow v. Laurence, 3 M. & S. 97, ante, 168, which explains. Bacon Searles, 1 Hen. Bla. 88.

4

Cowley v. Dunlop, 7 T. R. 571.-Death v. Serwonters, Lutw. 885. 888-Bosanquet v. Dudman, 1 Stark. 2, 3.

5 Symonds v. Parminter, 1 Wils. 185.-4 Bro. P. C. 604.-The plaintiff drew a bill upon the defendant, to the order of Cleer and Co. which the defendant accepted, but did not pay; the plaintiff paid it, and brought this action. The declaration stated, that the plaintif drew the bill; that the defendant accepted, but did not pay it; that the plaintiff became liable and did pay it, by reason whereof the defendant became liable and promised. The defendant demurred, and afterwards moved in arrest of judgment, and contended that the action could not lie; but the court, after two arguments upon the demurrer, and one on motion in arrest of judgment, were of opinion that it would, and judgment was given for the plaintiff. The defendant brought a writ of error in parliament, but did not appear at the bar to support it, and judgment was affirmed.

Louviere v. Laubray, 10 Mod. 36. The plaintiff drew a bill upon the defendant, which the defendant accepted, but afterwards refused